Does the court supervise the Personal Representative?

No. The Personal Representative can act on his or her own without the approval of the court. The Personal Representative keeps the court informed of his or her progress by filing all required documents. If an interested person thinks that the Personal Representative is not doing a good job, that person can bring up his or her concerns to the court, petition the court in formal probate to remove the Personal Representative or to open supervised administration. Supervised administration involves the highest level of court oversight and is usually granted only when there are serious concerns about the actions of the Personal Representative.

Any creditor of the person who died if it has been 45 days since the person's death.

The person who died can nominate two or more persons to serve together as Co-Personal Representatives in his or her Will or, if there is no Will, two or more persons who have the same priority can serve together. Also, two people who have different priority can serve as Co-Personal Representatives if all heirs and all persons with equal or greater priority consent. Unless the Will says differently, Co-Personal Representatives must act together. But if one of the Co-Personal Representatives cannot serve or stops serving, the other Co-Personal Representative(s) can still serve.

If I don’t have priority, can I serve as the Personal Representative?

Yes, if each person who has higher priority agrees to nominate you to be the Personal Representative and each completes a:

Nomination for Appointment of Personal Representative with Lower Priority, P-306

You must file all nomination forms with your request to start the probate case. The form you file to start the case depends on whether the case will use the informal probate process or the formal probate process and whether the person who died made a will. See the forms to start the probate.

Can the court appoint Co-Personal Representatives?

Yes. The court can appoint two or more persons as co-personal representatives. This can happen if the Will names them or if there is no Will, the people request to be appointed as co-representatives. In general, the co-personal representatives must act together on all decisions. However, the Will could specify or the co-personal representatives could request the court allow a different decision-making arrangement. In an emergency such as the other co-personal representative cannot be contacted in a timely fashion and action is needed to preserve the estate, one co-representative can take the necessary action.

To ask the court to appoint you as a co-personal representative, you can file:

How do I object to the appointment of the Personal Representative?

If you believe that the Personal Representative does not have the right to serve or is incapable of serving, you can object to his or her appointment by filing a formal probate. If you are opening a formal probate, the form you file depends on whether the person who dies made a will.

If the person who died did NOT make a Will, you can file:

The court will schedule a hearing on your request and you must give notice of the hearing to the Personal Representative and anyone else the court orders. When the Personal Representative has notice of your Request to Start Formal Probate, he or she must stop acting except to preserve the estate.

You can also petition the court for a temporary restraining order to stop the Personal Representative from doing a specific act. The court will set a hearing within 10 days on your petition. You must give notice to the Personal Representative, the Personal Representative's lawyer and any other parties you name in your petition in the time that the court orders.

When probate is complete but at least 6 months after date of first publication of Notice to Creditors.

The Personal Representative will need to do many other practical tasks which are also described in the sections that follow. Also, the Forms and Instructions page has links to specific information about the different steps of the process.

What is the "Information to Heirs and Devisees?"

Within 30 days after the court appoints you as the Personal Representative, you must send information to all of the heirs and devisees of the person who died telling them that you have opened the probate. You must include the heirs even if the person made a Will. You can file:

What tax documents do I need to file with the IRS?

Employer Identification Number (Form SS-4): You can apply on-line to the IRS who will assign a EIN to identify the estate for banking and income tax purposes. You need the EIN to open an estate bank account and to file tax documents for the estate. You should never use the social security number of the person who died or your own social security number to identify estate property. The EIN is sometimes called a Taxpayer Identification Number (TIN).

You must publish the Notice once a week for three weeks in a row in a newspaper which is commonly read in the judicial district in which the probate is filed. It is a good idea to publish the Notice as soon as you are appointed as the Personal Representative because the probate cannot be closed until at least six months after the first date of publication. You do not need to publish this Notice if the estate qualifies as a small estate.

After you publish the Notice, the newspaper will send you a document that lists the dates on which the Notice appeared in the newspaper. File with the court as proof of publication:

You must mail or deliver the Notice personally to all creditors who have claims about which you know or could reasonably find out. If you do not do this, these creditors will have three years from the date of the person's death to bring their claims against the estate. For more information on creditor claims, including how to find creditors, how to file a claim as a creditor and what to do if a creditor files a claim, see Debts and Creditors.

What do I do when the creditor claim period ends?

Most creditors have four months from the date of the first publication of the Notice to file claims against the estate either with you or the court. You then have 60 days to make a decision about whether to pay these claims. If you decide that a claim is not valid, you must file a "Disallowance of Claim."

For more information on creditor claims, including deciding whether to pay claims, filing a claim as a creditor and paying claims in the right order, see Debts and Creditors.

What are Allowances and Exempt Property?

Allowances and exempt property are special payments that the Personal Representative makes to family members of the person who died from estateproperty. They can total up to $55,000 (or more in some cases). These payments are in addition to any shares that the family members receive from the estate (unless the Will says something differently).

The types of payments are generally as follows (more specific information can be found in the sections below):

Surviving spouse of the person who died or if none, then divided between all of the person's children.

These payments have priority over all other claims, including creditor claims, debts, taxes and costs of probate. If there is not enough property in the estate to pay all of these special payments, the Homestead Allowance is paid first, the Family Allowance is paid next and Exempt Property is paid last. Even if the person who died made a will that disinherited the spouse or children, the personal representative needs to pay the allowances and exempt property out of the estate. The spouse and children may disclaim their interest in receiving any allowances and exempt property, and would need to file a document with the court stating this.

What is a Disclaimer?

A person "disclaims" property when he or she refuses to accept it after the person dies. A disclaimer is only valid if a person makes it before receiving or controlling the property. The person must describe the property in writing, sign the disclaimer and file it with the court or deliver it to the Personal Representative.

What is a "qualified" disclaimer?

This is a disclaimer made within nine months of the date of the person's death. It is "qualified" because the IRS does not treat you as the owner of the property for estate and gift tax purposes.

Where does the property go if I disclaim it?

As a general rule, it passes as if you died before the person who died either by intestacy or under the person's Will. But the rules are complicated and this is not always the case. If you want to make a disclaimer, it is a good idea to talk to a probate lawyer.

Does the Personal Representative have the right to be paid?

Yes. The Personal Representative has the right to be paid a "reasonable" fee for his or her time handling the probate and to be reimbursed for reasonable expenses. Most Personal Representatives choose to be paid at an hourly rate. While there is no set amount of what hourly fee is considered reasonable, the hourly rate must be based on the factors in Probate Rule 7.1. Many people think $25-35/hour is a reasonable rate, but every case is different.

A Personal Representative can choose another reasonable method of payment such as a lump sum, a percentage of estate assets, or certain property of the person who died. If the Will sets out what the fee is, the Personal Representative must choose either the payment under the Will or a reasonable fee before he or she is appointed.

He or she can also choose to serve without being paid. If the Personal Representative is the only heir or beneficiary of the estate, he or she will often serve without payment because estate property usually passes without income tax but all Personal Representative fees must be reported as taxable income.

Whether the Personal Representative has any risk of personal liability after the probate is closed.

The time that the probate took away from the Personal Representative's regular job.

Whether the Personal Representative was reimbursed for expenses.

What work the Personal Representative hired agents to do and the fees charged by those agents.

Whether the Personal Representative did other tasks for the estate, such as serving as lawyer, accountant, appraiser, property manager or investment advisor and whether the Personal Representative charged for those tasks.

How many Personal Representatives served.

Any other factor that is important.

You should keep good records of everything you do during the probate, including the date, time spent and a description for each day. Keeping track of time is helpful for the court, helps interested persons understand what you did for the estate and helps to justify your fee.

What powers does the Personal Representative have?

The Personal Representative can do almost anything the person who died could do with estateproperty. The Personal Representative can buy and sell property, settle debts and taxes, make repairs, enter into contracts and leases, abandon property, make investments, participate in lawsuits and continue most business dealings, among other things.

The Personal Representative can hire agents to help with the probate, including lawyers, accountants, bookkeepers, investment advisors, real estate agents, appraisers and property caretakers. The Personal Representative can also hire family members to assist with his or her duties, if appropriate.

Are individuals and businesses protected if they deal with the Personal Representative?

Yes. The Letters Testamentary or Letters of Administration prove that the Personal Representative has the power to do the things that the person who died could. You can assume that the Personal Representative has all of the powers of an owner unless you actually know of a limitation. You do not need to follow up on what the Personal Representative does with the property once you give it to him or her.

What duties does a Personal Representative owe to interested persons?

A Personal Representative is a fiduciary which means that he or she is acting in a position of trust and his or her actions are held to a very high standard. The Personal Representative must act for the benefit of interested persons in the estate and not for his or her own personal benefit. A Personal Representative must follow the law, act with care and manage the estate efficiently and fairly. If the Personal Representative does something improper, he or she can be personally responsible from his or her own funds for damages.

How can I remove a Personal Representative?

You must have a good reason or "cause" to remove the Personal Representative. You must prove to the court that removal is in the best interest of the estate or show that the Personal Representative did bad things such as lying when being appointed, ignoring a court order, mismanaging the estate or failing to perform his or her duties. An interested person can ask the court to remove the Personal Representative by filing a formal probate. The court will schedule a hearing on your petition and you must give notice of the hearing to the Personal Representative and anyone else the court orders. When the Personal Representative has notice of your petition, he or she must stop acting except to preserve the estate. The form you file depends on whether the person who dies made a will.

If the person who died did NOT make a Will, you can file:

The court will schedule a hearing on your request and you must give notice of the hearing to the Personal Representative and anyone else the court orders. When the Personal Representative has notice of your Request to Start Formal Probate, he or she must stop acting except to preserve the estate.

You can also petition the court for a temporary restraining order to stop the Personal Representative from doing a specific act. The court will set a hearing within 10 days on your petition. You must give notice to the Personal Representative, the Personal Representative's lawyer and any other parties you name in your petition in the time that the court orders.

How do I close the probate?

Closing Informal Probate Cases

Sworn Statement. The most common way to close an informal probate is to file a Sworn Statement of Personal Representative with the court. You will keep your powers as Personal Representative for one year after you file the Sworn Statement. If there are no court proceedings at the end of the year, your appointment will end automatically. No court hearing is needed. You can file:

Sworn Statement of Personal Representative to Close Informal Estate, P-355

*Important: You must sign a verification under oath saying that all of these statements are true and complete to the best of your knowledge and belief. You can do this before a notary. Notary services are available for free at all state court offices.

Formal closing. You may also file a Request to Close Formal Estate and Approve Distribution that asks the court to close the probate formally. You can file this petition even if you have not opened a formal probate. The court will set a time and a date for a hearing. You must notify all interested persons of the hearing. At the hearing, the court will review the Inventory, Accounting and proposed distribution of any remaining property and listen to the concerns of all interested persons. If the court approves, it will close the probate and end your appointment immediately.

You can file:

Request to Close Formal Estate and Approve Distribution, P-360[Fill-In PDF]

Closing Formal Probate Cases

To close the formal probate, you can file:

Request to Close Formal Estate and Approve Distribution, P-360[Fill-In PDF]

The court will set a time and a date for a hearing. You must notify all interested persons of the hearing. At the hearing, the court will review the Inventory, Accounting and proposed distribution of any remaining property and listen to the concerns of all interested persons. If the court approves, it will close the probate and end your appointment immediately.

You'll need to download a free copy of
Adobe Acrobat Reader in order to view and print documents with this symbol. If you are using a screen reader, get support
and information at the Adobe Access website.